WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 1 of 39 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on:11.01.2019 + W.P.(CRL) 3247/2018 & Crl. M.A. Nos. 34807-08/2018 DEVENDER KUMAR ..... Petitioner Versus CENTRAL BUREAU OF INVESTIGATION & ORS.....Respondents + W.P.(CRL) 3248/2018 & Crl. M.A. Nos. 34811-12/2018, 35599/2018 RAKESH ASTHANA ..... Petitioner Versus CENTRAL BUREAU OF INVESTIGATION & ORS.....Respondents + W.P.(CRL) 3292/2018 & Crl. M.A. Nos. 35067-68 MANOJ PRASAD ..... Petitioner Versus CENTRAL BUREAU OF INVESTIGATION & ORS.....Respondents Through: Mr. Dayan Krishnan, Sr. Advocate with Mr. Vivek Singh, Mr. Swatik Dalai and Ms. Aakashi Lodha, Advocates for Petitioner in W.P. (Crl.) 3247/2018. Mr. Amarendra Sharan, Senior Advocate with Mr. Amit Anand Tiwari and Mr. Shashwat Singh, Advocates for Petitioner in W.P. (Crl.) 3248/2018. Ms. Seema Seth, Advocate for Petitioner in W.P. (Crl.) 3292/2018. Mr. Vikramjeet Banerjee, Additional Solicitor Bar and Bench (www.barandbench.com)
39
Embed
images.assettype.comimages.assettype.com/barandbench/import/2019/01/Rakesh...WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 2 of 39 General with Mrs. Rajdipa Behura, Special Public Prosecutor
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 1 of 39
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:11.01.2019
+ W.P.(CRL) 3247/2018 & Crl. M.A. Nos. 34807-08/2018
DEVENDER KUMAR ..... Petitioner
Versus
CENTRAL BUREAU OF INVESTIGATION & ORS.....Respondents
+ W.P.(CRL) 3248/2018 & Crl. M.A. Nos. 34811-12/2018, 35599/2018
RAKESH ASTHANA ..... Petitioner
Versus
CENTRAL BUREAU OF INVESTIGATION & ORS.....Respondents
+ W.P.(CRL) 3292/2018 & Crl. M.A. Nos. 35067-68
MANOJ PRASAD ..... Petitioner
Versus
CENTRAL BUREAU OF INVESTIGATION & ORS.....Respondents
Through: Mr. Dayan Krishnan, Sr. Advocate with Mr. Vivek
Singh, Mr. Swatik Dalai and Ms. Aakashi Lodha,
Advocates for Petitioner in W.P. (Crl.) 3247/2018.
Mr. Amarendra Sharan, Senior Advocate with
Mr. Amit Anand Tiwari and Mr. Shashwat Singh,
Advocates for Petitioner in W.P. (Crl.) 3248/2018.
Ms. Seema Seth, Advocate for Petitioner in W.P.
(Crl.) 3292/2018.
Mr. Vikramjeet Banerjee, Additional Solicitor
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 2 of 39
General with Mrs. Rajdipa Behura, Special
Public Prosecutor with SP Mr. Satish Dagar, IO.
Ms. Maninder Acharya, Addl. Solicitor General
with Mr. Ajay Digpual, CGSC, Mr. Soumava
Karhakar, Mr. Sahil Sood, Mr. Harshul Choudhary
and Mr. Viplav Acharya, Advocates for UOI.
Mr. Rahul Sharma, Advocate for Respondent No.2.
Mr. M. A. Niyazi, Ms. Anamika Ghai and Ms. Kirti
Jaswal, Advocates for Respondent No. 3 in Item
Nos. 1 and 2.
Mr. Sunil Fernandes, Ms. Nupur Kumar,
Ms. Priyanka Indra Sharma and Mr. Arnav
Vidyarthi, Advocates for the Intervenor.
Mr. Shashwat Singh, Ms. Harshal Gupta and Ms.
Devyani Gupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J
1. W.P. (Crl.) 3248/2018 shall be treated as the lead case and unless
stated otherwise, the expression petitioner shall mean the petitioner in this
case. Respondent no. 2 is the Director, CBI, Respondent no. 3 is a Joint
Director in the CBI, Respondent no. 4 is the UOI. The petitioner seeks
quashing of FIR No. RC 13(A)/2018/AC-III dated 15.10.2018 (in short
FIR/RC 2018) registered by the CBI. It is impugned on the ground that it
falls foul of the statutory bar under Section 17A of the Prevention of
Corruption Act, (in short PC Act). The said provision of law reads as under:
“...17.A. Persons authorised to investigate. –
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no police officer below the
rank, -
(a) In the case of the Delhi Special Police Establishment, of
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 3 of 39
an Inspector of Police;
(b) In the metropolitan areas of Bombay, Calcutta, Madras
and Ahmedabad and in any other metropolitan area notified
as such under sub-section (1) of section 8 of the Code of
Criminal Procedure, 1973 (2 of 1974), of an Assistant
Commissioner of Police;
(c) Elsewhere, of a Deputy Superintendent of Police or a
police officer of equivalent rank,
shall investigate any offence punishable under this Act
without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make any
arrest therefor without a warrant:
Provided that if a police officer not below the rank of an
Inspector of Police is suthorised by the State Government in
this behalf by general or special order, he may also
investigate any such offence without the order of a
Metropolitan Magistrate or a Magistrate of the first class, as
the caase may be, or make arrest therefor without a warrant;
Provided further that an offence referred to in clause (b) of
sub-section (1) of section 13 shall not be investigated without
the order of a police officer not below the rank of a
Superintendent of Police....”
FACTS
2. One Mr. Satish Babu (Sana) was being investigated by the CBI in RC
No. 2242017A0001 (in short FIR/RC 2017). He has alleged harassment by
the Investigating Officer of that case, demand of illegal gratification and
extortion by the latter. He had complained of being repeatedly called by the
investigating officials and at some stage was promised, through two persons
namely Manoj Prasad (Manoj) and Somesh Prasad (Somesh), that in lieu of
payment of Rs. 5 crores his harassment i.e. his being called for repeated
investigation would cease. The said complaint was given by Sana to the CBI
on 15.10.2018 wherein he had stated that he had appeared before Mr.
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 4 of 39
Devinder Kumar, DSP on 12.10.2017 in CBI office on subsequent dates as
well and had given answers to the query put to him apropos the RC 2017.
That in December 2017 he interacted with one Manoj, whom Sana claims to
have known for some time; the latter assured him of help in the case because
of his proximity with some CBI officers. Manoj introduced the petitioner to
his brother Somesh. They spoke to somebody over the telephone and
promptly assured Sana again that his problem would be solved and no further
CBI notice would be issued to him. However, for this relief an amount of Rs.
5 crores would have to be paid to the CBI officers through Somesh. An
advance of Rs. 3 crores would have to be paid, while the remaining amount
of Rs. 2 crores would be payable at the time of filing of the Chargesheet in
the case and a clean chit would be managed for Sana. The complaint further
states that upon inquiries made by him about the CBI Officer, with whom
Somesh has spoken over the phone, the latter showed him a Display Profile
(DP) on his Whatsapp contact, a picture indicating that that was the
officer/person with whom he had spoken and who had assured favours to him
in lieu of the payment of Rs. 5 crores. The said picture was of a person in
police uniform. Somesh identified the said person as the petitioner in
WP(Crl.) No. 3248/2018. Sana claims that later he cross-checked the
photograph from the internet (Google website) and found that the photograph
of the petitioner was the same as shown to him by Somesh. He states that in
the belief that he would be able to get rid of the harassment and mental agony
faced by him and his family, he arranged the payment of an amount of Rs. 1
crore to an identified person in Dubai and later paid an amount of Rs. 1.90
crores on 13.12.2017 at 9.25 p.m. to an identified person in Delhi. Sana
further states that he subsequently heard a live conversation in a telephone
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 5 of 39
call from Sana, which purportedly involved petitioner in WP(Crl.) No.
3248/2018 and some other persons; in the conversation, at one stage,
instructions were issued that Sana’s case be looked into. Somesh later
informed the complainant that the instructions were given by the petitioner.
The complaint mentions specific dates on which conversations were held, as
well as some of the telephone numbers through which the conversations and
monetary transactions were arranged and effected. The complainant laments
that despite the said monies (over Rs. 3 crores) having been paid, he did not
get any relief. On the basis of the said complaint the FIR bearing no. RC
13(A)/2018/AC-III was registered on 15.10.2018. Hence the aforesaid FIR
was registered against, Mr. Rakesh Asthana, Spl. Director, CBI, Devinder
Kumar, DSP, Mr. Manoj Prasad, Mr. Somesh Prasad and other public
servants and private persons.
3. According to the CBI, Sana’s complaint contains grave allegations
against persons, including public servants. It makes out a cognizable offence
and needs to be investigated.
ARGUMENTS
4. CBI argues that the complaint prima facie disclosed the commission of
offences punishable under sections 7, 7A, 13(2), 13(1)(d) of the Prevention of
Corruption Act, 1988 (PC Act) and section 120B Indian Penal Code, 1860;
that the complainant had specifically stated that he was being unnecessary
harassed in order to extort money from him and till now he has been made to
pay a sum of more than Rs. 3 crores on different occasions; that he has
“already given a statement under section 164 Criminal Procedure Code, 1973
about the facts and circumstances of the case and the manner in which he was
made to pay the above amount, for stopping his further harassment and for
giving him clean chit in the case; the allegation is that monies have been
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 6 of 39
received from him by private persons named in the FIR for handing over to
CBI officials”.
5. The complainant’s statement under section 164 Cr.P.C. was recorded
before the Court of Metropolitan Magistrate in the RC 2017 on 04.10.2018.
Another statement under section 164 Cr. PC was recorded on 20.10.2018
before the same Court, reiterating the allegations made in the complaint.
6. The petitioner has impugned the registration of the 2018 FIR primarily,
on two grounds: (i) that it is in breach of Section 17A of PC Act, which
requires prior sanction/ permission from the Government of India before
registration of the FIR and (ii) that it is actuated by malice of respondent no.2
against the petitioner.
7. Section 4 of the Delhi Special Police Establishment Act, 1946 (DSPE
Act) provides for the scheme of superintendence and administration of
special police establishment. It reads as follows:
“4. Superintendence and administration of special police
establishment. –
(1) The superintendence of the Delhi Special Police
Establishment insofar as it relates to investigation of offences
alleged to have been committed under the Prevention of
Corruption Act, 1988 (49 of 1988), shall vest in the
Commission.
(2) Save as otherwise provided in sub-section (1), the
superintendence of the said police establishment in all other
matters shall vest in the Central Government.
(3) The administration of the said police establishment shall
vest in an officer appointed in this behalf by the Central
Government (hereinafter referred to as the Director) who
shall exercise in respect of that police establishment such of
the powers exercisable by an Inspector-General of Police in
respect of the police force in a State as the Central
Government may specify in this behalf.”
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 7 of 39
8. The petitioner argues that in all cases concerning investigation of
offences committed under the PC Act, the superintendence of the CBI would
vest with the Central Vigilance Commission (CVC), while in other matters it
vest with the Central Government, and the administration of the CBI itself
vests with its Director; that there is a complete bar on any enquiry or inquiry
or investigation into an alleged offence, against a public servant, without the
previous approval of the employer Union/State Government.
9. The learned Additional Solicitor General submits on behalf of the CBI
that permission under section 17A of Prevention of Corruption Act, 1988
(hereinafter to be referred as the „Act‟) would not be at all warranted because
the allegations in the complaint, on the basis of which the FIR has been
registered after due process, cannot be said to be in discharge of the official
functions or duties of the officers against whom allegations have been made.
10. The complainant, Sana, has clearly mentioned that the illegal
gratifications were demanded from him or otherwise he was promised that he
would be let off in RC 2017, if he were to pay an amount of Rs.5 crores to
the middlemen, Manoj and Somesh and the monies would travel up the
hierarchal order to senior officials in the CBI. He has mentioned the names of
the petitioners. It is argued that, therefore, any advisory issued by the
Central Vigilance Commission (CVC) under section 8 of the Central
Vigilance Commission Act, 2003 (CVC Act) apropos section 17A of the Act
would not be applicable to this case. He, further, contends that because of the
nature of the allegations against the public servants, no permission would be
required from the competent authority under section 17A of the Act.
11. On behalf of respondent No. 4/UOI, Ms. Maninder Achyarya, the
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 8 of 39
learned Additional Solicitor General for India, submits that ordinarily the
sanction of the Government of India would be required under section 17A of
the Act, however, since no reference has been made by the CBI, there is not
much that government can do in the present circumstances, because
according to the CBI, the allegations against the government officers do not
relate to their actions in discharge of their official duties. She further submits
that should any reference be made by the CBI, the matter will be promptly
looked into.
12. The learned counsel for respondent No.3 reiterates the basic argument
on behalf of the CBI: i.e. no sanction would be required in cases where the
conduct of the public servant is not in the discharge of official duties. He
refers to the dicta of the Supreme Court in Subramanian Swamy vs. CBI,
(2014) 8 SCC 682, which has struck down section 6A of the Delhi Special
Police Establishment Act, 1946 (DSPE), which is pari materia with section
17A of the PC Act. It is stated that the constitutionality of section 17A of the
Act too has been challenged and notice has been issued by the Supreme Court
on 26.11.2018.
13. Mr. M.A. Niyazi, the learned counsel for Respondent no. 3 further
argues that the sanction would be requisite only when the alleged offence is
relatable to a recommendation made or a decision taken by a public servant in
the discharge of his official duties; whereas, in the present case, no
recommendation or decision was taken by the public servant. Instead the
public servant is alleged to have been involved in coercion, extortion and/or
demand of illegal gratification during his investigation in RC 2017.
14. He further contends that section 17A of the Act seeks to protect the
government officers from unwarranted prosecution for decisions that may be
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 9 of 39
taken by them or recommendations made in the discharge of their official
duties, but the protection cannot and does not extend to an ostensibly corrupt
and criminal act. The allegations against the petitioners constitute corrupt
and criminal acts there is no embargo under the said statute for the relevant
investigating agency to conduct an „enquiry‟ or „inquiry‟ or „investigation‟
into the alleged offence. He further contends that the petition is replete with
unsubstantiated and malicious allegations against respondent No.3; the
allegation of bias by respondent No.3; or that he has accepted or agreed to
accept illegal gratification of Rs. 2 crores alongwith respondent No.2 is
strongly refuted. In ground M of the writ petition, the petitioners have
referred to a communication dated 24.08.2018 to the Cabinet Secretary;
however, perusal of the said letter would show that respondent No. 3 is not
mentioned therein nor there is any whisper of any transaction of money
involving respondent No. 3, nor is any amount of money mentioned.
15. Mr. Amit Sibal, the learned Senior Advocate for respondent No. 2 also
submits that the object and rationale behind section 17A is to protect public
servants in the bonafide discharge of their duties while taking administrative
decisions and making recommendations.
16. Mr. Amarendra Sharan, the learned Senior Advocate for the petitioner
submits that the gravamen of the accusation against the petitioner is that
some third person had sought monies in the name of CBI officials, including
the petitioner, on the promise that further notices from the Investigating
Officer in 2017 FIR would stop in exchange of illegal gratification of Rs.5
crores, of which Rs. 3 crores are stated to have been paid by the complainant
to some third persons. However, in the entire complaint no link has been
established with the petitioner and he is being harassed; that there is no shred
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 10 of 39
of evidence to show criminality by the petitioner. It is argued that the
sanction under section 17A of the Act would be necessary because the
petitioner heads the Special Investigation Team (SIT) in RC 2017; the
allusion of financial malfeasance by the petitioner would relate to the
recommendations or decisions that may be taken regarding the discharge or
non-summoning of the complainant. He further submits that it would be
extremely easy for the Investigating Agency to circumvent rigours of section
17A by not seeking permission of the Union of India or the relevant State
Government or the Competent Authority, merely on the plea that the action
of the public servant is not in the discharge of his official functions or duties;
that the registration of FIR and initiation of investigation against the
petitioner is steeped in mala fides, because the petitioner had earlier written a
letter to the Cabinet Secretary on 24.08.2018 apropos certain irregularities by
respondents No. 2 and 3. The said letter was referred to the CVC.
According to the petitioner, he had sent a Note on 20.09.2018 to respondent
No.2 seeking approval for custodial interrogation of four persons. On
24.09.2018, respondent No.2 sought further information and opinion of the
Director of Prosecution (DOP) of the CBI, before a decision could be taken.
The petitioner contends that the reference of the case to the DOP was neither
necessary nor permissible in law.
17. The petitioner further submits that a letter was issued by the CVC to
the CBI, directing, inter alia that a case should not be registered without prior
sanction under section 17A of the Act; that Sana had made a complaint on
15.10.2018 at 8.00 p.m., which was not taken to the Magistrate on the same
day and the FIR was registered on the same day. The FIR/RC 2018 reached
the Judicial Officer on 17.10.2018 at 11.55 p.m. It is argued that roughly
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 11 of 39
eight requisite steps to be completed prior to the registration of an FIR by the
CBI; it is not likely that all these could have happened in the course of one
day itself. He submits that in breach of provisions of section 157 Cr.P.C.,
the FIR did not reach the Magistrate forthwith, neither was the FIR uploaded
within 72 hours in terms of the directions of the Supreme Court in the case of
Youth Bar Association of India vs. Union of India &Anr., (2016) 9 SCC
473, wherein it was held that:-
“11.4 The copies of the FIRs, unless the offence is sensitive in
nature, like sexual offences, offences pertaining to insurgency,
terrorism and of that category, 6 offences under POCSO Act
and such other offences, should be uploaded on the police
website, and if there is no such website, on the official website
of the State Government, within twenty-four hours of the
registration of the First Information Report so that the accused
or any person connected with the same can download the FIR
and file appropriate application before the Court as per law for
redressal of his grievances. It may be clarified here that in case
there is connectivity problems due to geographical location or
there is some other unavoidable difficulty, the time can be
extended up to forty-eight hours. The said 48 hours can be
extended maximum up to 72 hours and it is only relatable to
connectivity problems due to geographical location.”
18. The petitioner submits that a bare perusal of the Case Diary and other
records would show that the requisite steps for registration of the FIR have
not been taken; that there are numerous breaches of the prescribed procedure,
would establish that the complaint lacks merit; that charges under section
13(1)(d) of the Act would not be applicable since the said provision of law
has ceased to be a part of the statute since 26.07.2018. It is argued that
apropos the remaining two sections of the PC Act mentioned in the FIR, two
things would be necessary i.e. the government officer/public servant should
Bar and Bench (www.barandbench.com)
WP(Crl.) Nos. 3247, 3248 & 3292-2018 Page 12 of 39
have asked for bribe or payment and received the illegal gratification. In the
present case, no demand is alleged to have been made by the petitioner nor is
there a proof that the said monies paid by the complainant to a third person
ever reached the petitioner; that the allegations against the petitioner are as
nebulous as can be. In support of his contentions he has referred to the
judgment of the Supreme Court in the case of Dashrath Singh Chauhan vs.
Central Bureau of Investigation, 2018(13) SCALE 705, which held that
“32). Since in order to attract the rigors of Section
7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a
legal obligation to prove the twin requirements of
“demand and acceptance of bribe money by the
accused”, the proving of one alone but not the other was
not sufficient. The appellant is,
therefore, entitled for acquittal from the charges framed against
him under the PC Act too. (See para 8 of M.K. Harshan vs.
State of Kerala, (1996) 11 SCC 720)”
19. It argued that, therefore, RC 2018 could not be registered, but it having
registered cannot be for anything but actuated by malafides.
20. Mr. Dayan Krishnan, the learned Senior Counsel for Devinder Kumar,
the petitioner in W.P. (Crl.) 3247/2018 adopts the arguments of Mr. Sharan.
Additionally, he submits that in the complaint Devinder Kumar is not
mentioned therein and if, at all, there is reference to a demand, it is only with
reference to the petitioner in W.P. (Crl.) 3248/2018 and that there is no direct
interaction of any demand by Devinder Kumar. He refers to section 8 of the
Act, which makes bribe giving an offence under the law. It reads as:-
“8. Offence relating to bribing of a public servant.- 8. (1)
Any person who gives or promises to give an undue advantage
to another person or persons, with intention— (i) to induce a